Argument recap: A good day for the EPA?

Posted Tue, December 10th, 2013 1:35 pm by Lyle Denniston

It is rare these days in Washington for the Environmental Protection Agency to have a good day, with important figures showing sympathy for the difficulty of its task. But the EPA could walk away from Tuesday’s oral arguments on how the agency acted to limit foul air from floating from state to state, with a sense that maybe it did it about right. As usual, it faced some criticism, true, but this time that did not dominate.

At issue is how the EPA can carry out the task assigned by Congress of making sure that states which generate pollution that then impairs the quality of air for their neighbors can be held accountable and made to do something about it. As the Court explored that issue, it became increasingly apparent that the Justices appreciated that, because it is not possible to blame State A or State B in precise portions for endangering the environment in State C or State D, maybe the EPA should be allowed a healthy amount of discretion to devise a plan.

Deputy U.S. Solicitor General Malcolm L. Stewart, defending the EPA’s so-called “Transport Rule,” helped his case a good deal by suggesting that what EPA had to do was to answer a question like the one a basketball coach might get, on why his team lost a close game. Was it that missed layup, or was it that missed desperation shot at the buzzer, which caused the loss?

Both, he suggested, had “contributed significantly” to the loss, so that is what the coach had to confront. The EPA, under the Clean Air Act, has the similarly difficult task of deciding which state’s transported pollution across a border “contributed significantly” to a neighbor state’s inability to satisfy a federal clean air standard. The EPA came up with a cost-based formula, apportioning an “upwind” state’s duty to control emissions from power plants within its own borders according to how feasibly it could reduce the cross-state impact.

A group of upwind states that object to the EPA’s approach complains that it has no authority to impose such obligations on a state without first giving each state both notice of its share of blame and a chance to devise control strategies on their own. Texas’s state solicitor general, Jonathan F. Mitchell, put that argument before the Court.

But a group of private firms, mainly power companies, along with a labor union, complains that the Clean Air Act nowhere gives the EPA the authority to devise a cost-based method of calculating state control obligations, because that makes some states responsible for more than their share of transported pollution. Washington attorney Peter Keisler offered that argument to the Justices.

As the argument unfolded, it appeared that one or both of those challenges got a sympathetic hearing from Justice Antonin Scalia — but, in the main, only from him. The two attorneys for the challengers were reminded repeatedly by the Justices that the Act did not lay down hard-and-fast directives to the EPA on how to devise control strategies, so the agency was left to come up with those using its expertise.

The case is being reviewed by eight Justices, since Justice Samuel A. Alito, Jr., somewhat late in the process took himself out, without giving a reason. It will still take five votes for either side to win, but the risk for the EPA is that — with eight on the bench — there is always a chance it would divide evenly. That outcome, of course, would uphold the D.C. Circuit’s ruling nullifying the EPA’s Transport Rule.

Aside from Justice Scalia, who aggressively pushed the full range of arguments against the EPA rule, the members of the Court kept returning to the text of the Clean Air Act and finding in it what Justice Anthony M. Kennedy suggested was “a judgmental component” — that is, one that invited the EPA to use its judgment to achieve the Act’s goal of helping downwind states meet air quality goals.

Chief Justice John G. Roberts, Jr., identified what may be the weakest point in the EPA’s defense of its rule: that is, that it had to go ahead and spell out for each state what new steps it must take to limit cross-state pollution, without first giving the states a chance to devise plans to do so on their own. Roberts wondered what the EPA would tell a state if it wanted to take action, but had no idea what EPA’s ultimate control strategy would turn out to be.

Deputy Solicitor General Stewart said it was the Act itself that imposed on the EPA the duty to fashion a plan that helps control downwind pollution transport, when the states fail to do so. The Chief Justice did not press the point at length, however, and his other comments suggested that he, too, had some sympathy for the EPA’s task.

When the lawyer for the state and local government challengers protested that the EPA had forced the states to merely guess at what their obligations would be to be “good neighbors” toward other states, the Chief Justice conceded that the states faced a difficult task, but he commented that that is what the law seemed to require. In fact, Roberts said, if the EPA had “taken a different view,” it might have violated the Act.

Aug. 2015

In a conversation with Bill Kristol of The Weekly Standard, Justice Samuel Alito reflects upon (among other things) his arrival on the Court, recent First Amendment cases, the themes in his dissent in Obergefell v. Hodges, and his love for baseball.